The folly of electing judges: Partisanship and disdain for the Constitution UPDATE | Arkansas Blog

Thursday, May 17, 2018

The folly of electing judges: Partisanship and disdain for the Constitution UPDATE

Posted By on Thu, May 17, 2018 at 7:36 AM

click to enlarge UNFIT: By refusing to repudiate this advertising, Johnnie Copeland demonstrates a lack of qualification for a judgeship. (This is screenshot of video, not a link to actual ad.)
  • UNFIT: By refusing to repudiate this advertising, Johnnie Copeland demonstrates a lack of qualification for a judgeship. (This is screenshot of video, not a link to actual ad.)
If ever a campaign season proved the ills of judicial elections, it is this year.

A tide of dark money aimed at making the nominally non-partisan judiciary a Republican organ in all but name has spurred a flood of stories. Latest development is the legal saga undertaken by Supreme Court Justice Courtney Goodson to battle the flood of Republican and corporate cash aiming at replacing her with a nakedly partisan and unqualified candidate, David Sterling.

In suing to block dark money advertising about Goodson's record, the justice has done herself no favors. She got some home cooking from Circuit Judge Doug Martin in Fayetteville, who's now recused from the case after reporting that his wife earns money from employment by the legal/lobbying endeavors of Goodson's husband John Goodson. Martin recused but left his injunction in place. You can't tell all the swamp dwellers without a scorecard.

The ACLU and others have scolded Martin for engaging in prior restraint. Even odious, dark money lobbies intent on undermining the justice system have 1st Amendment rights. The bigger problem is two-fold: 1) Citizens United and the corporate cash it unleashed on judicial and other races and 2) the refusal of the Republican Arkansas legislature to require meaningful disclosure of sources of electioneering ads and to impose limitations on spending on judicial races similar to those in other election contests.

The problem is the election of judges. I got this comment from Mark Killenbeck, a law professor at the University of Arkansas, which is on point in the current mess. He sees the organized bar's recent  effort to denounce the dark money ads with an ad hoc policing committee asbelated piety.

"I was appointed by the bar association to the committee that reviewed how Supreme Court members are selected in Arkansas. I was adamant that elections should be ended and a merit system adopted. The establishment rejected that recommendation. The dirty politics chickens have now come home to roost."
But one more word on David Sterling and the Republican cutout from Mountain Home, Johnnie Copeland, who hopes to ride dark money Republican hit advertising to victory over incumbent Court of Appeals Judge Bart Virden:

It is not enough to disclaim connection with the dark money advertising. Neither Sterling nor Coleman has repudiated the advertising and called for it to end. Nor have they called for supporters to reveal themselves. The attack on Virden is particularly slimy and deserving of rebuke by any candidate who believes in the U.S. Constitution. He joined a broad court majority in striking down a criminal conviction because the suspect was prevented from offering testimony to impeach the credibility of a government witness. The accused is entitled to competent counsel and an adequate defense, including confronting accusers and impeaching their credibility. Any judicial candidate who tacitly endorses advertising that suggests otherwise is unqualified to serve. Looking at you Johnnie Copeland. At a minimum, you should call on the hit squad not to use your campaign material in their advertising. Have you no shame?

UPDATE: One of the TV stations enjoined from running the anti-Goodson ads has asked that Martin's injunction be dissolved and Goodson's attorneys have filed a motion in opposition. A new judge has been assigned  from outside Washington County because of recusal of all local judges and a hearing is set tomorrow.

UPDATE II: The ongoing controversy prompts this comment from John Wesley Hall, a Little Rock criminal defense lawyer:

Criminal defense lawyers can now move to disqualify Sterling and Copeland (if they are elected) and so can any civil lawyer with a constitutional issue in their case. A tainted appellate judge is reason to set aside appellate decisions. Caperton v. AT Massey Coal Co., Inc., 556 U.S. 86 (2009). They have advertised open distain for constitutional rights and due process of law, and they would be a stain on any concept of justice. Unworthy isn't the half of it. They've disqualified themselves. And how craven is campaigning like this? It makes a mockery of the rule of law, and it contravenes the oath of office they must take: “I, _________ , do solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of the State of Arkansas, and that I will faithfully discharge the duties of the office of _________ , upon which I am now about to enter.” It would be grounds for impeachment, but the General Assembly only wants to impeach black judges that aren't cut from their own cloth. These two constitutional subversives will get a pass because the legislature has no spine.

I, for one, will have a standing motion to disqualify them (if they get sworn in) from all my cases because they taint any affirmance. And, the rest of both courts would know that. It sets up post-conviction relief if they don't, including in the federal courts, because a tainted bench gets no deference from a habeas court otherwise required by federal law. Any lawyer appearing in front of Copeland for the rest of her District Court term should do
UPDATE: The Virden campaign issued a news release noting that an ad hoc review panel had found problems with the dark money attack ads against him.

The Rapid Response Team comprised of Judge Audrey Evans, Hal Bass, Elizabeth Andreoli, Danyelle Walker, and Roy Ockert Jr. charged by the Arkansas Judicial Campaign Conduct & Education Committee, Inc. to investigate advertising claims in judicial races in Arkansas notified the Re-Elect Judge Bart Virden Campaign today they had sent a cease and desist letter to the Republican State Leadership Committee, although they have no association with the national or state Republican Party. The RSLC are responsible for the negative ads being televised about Judge Virden’s judicial record.

“I am really pleased to be vindicated by the Rapid Response Team. If past behavior is any indicator, these sleazy Washington DC attack groups will ignore the cease and desist letter and the television stations will continue to play these lies. I can only hope the people of Arkansas will see through these attempts to hijack our judicial elections,” Judge Virden stated.

The complaint, filed by the Virden campaign, noted the RSLC is sponsoring TV advertisements which state that “Virden overturned the conviction of a habitual rapist on a technicality leaving victims without justice.” Judge Virden’s campaign stated that these statements are false or misleading. The Virden campaign attached evidence to prove that the accused is currently serving time in an Arkansas Prison, and that Rogers opinion is currently pending on appeal to the Supreme Court.

The RRT reviewed these attachments and Rogers v State, 2017 Ark. App. 521 which is the opinion referred to in the TV ad. Rogers v State, 2017 Ark. App. 521, the opinion referenced in the TV ad, was issued by the Arkansas Court of Appeals. Six judges heard the case; 4 judges voted to remand and reverse, while 2 dissented. Judge Virden voted with the majority and, the writing of the opinion was delegated to him.

Edward D. Rogers is currently serving in the East Arkansas Region Unit. The Inmate Search-Inmate Details data, available on the Arkansas Department of Correction website, and submitted with this complaint, states that Rogers was admitted on 6/20/2016, and that his release date is 05/03/2044.

Having reviewed this information, the RRT determined that the Virden campaign met its initial burden to support its complaint that the advertisements are false or misleading. A person of ordinary intelligence would conclude that: Because Judge Virden did not individually make this decision; because the lower court decision was not overturned on a technicality, and because the accused person is in prison, the RRT finds the TV ads to contain false and misleading information.


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